# Sonu v. State of U.P

- **Citation:** (2022) 8 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Jail Appeal No. 153 of 2021
- **Bench:** Suneet Kumar, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sonu-v-state-of-u-p-48923
- **Pages:** 13

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 363, 366 & 376D - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 5/6 - The
Code of Criminal Procedure, 1973 -
Section 161,164,313 - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 15 - The Juvenile Justice
(Care And Protection Of Children) Act,
2007 - Juvenile Justice Rules 2007 - Rule
12 (3) Rule 12 (3) B , Rule 12 (3) (A) (i) to
(iii) - consent of a minor prosecutrix does
not matter if she was taken to separate
places for making sexual intercourse away
from her lawful guardians.(Para - 27)

(B) Criminal Law - sentence - rehabilitary
& reformative aspects in sentencing -
'Proper Sentence' - sentence should not
be either excessively harsh or ridiculously
low - While determining the quantum of
sentence, the court should bear in mind
the 'principle of proportionality' - Gravity
of offence, manner of commission of
crime, age and sex of accused should be
taken into account - Discretion of Court
in
awarding
sentence
cannot
be
exercised arbitrarily or whimsically. (Para
-34,36)

Victim kidnapped - transferred to several
persons - beaten and subjected to physical,
mental and sexual assault - later on was thrown
- found minor by lower court - conviction -
Hence appeal.(Para - 16,26)

HELD:-Proved beyond reasonable doubt that
accused-appellant committed offence under
Section 363 and 366 IPC .Committed offence
under Section 376 IPC read with Section 4 of
the POCSO Act. Not a case of gang rape. Not
guilty of Section 376D and Section 6 of the
POCSO Act. No accused person is incapable of
being reformed, therefore, all measures should
be applied to give them an opportunity of
reformation in order to bring them in the social
stream. (Para -32,36,38)

Jail appeal partly allowed and partly
rejected. (E-7)

List of Cases cited:-

## Text

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6 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022) 8 ILRA 6
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE UMESH CHANDRA SHARMA, J.

Jail Appeal No. 153 of 2021

Sonu ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Rahul Jain

Counsel for the Opposite Party:
A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 363, 366 & 376D - The
Protection
of
Children
From
Sexual
Offences Act, 2012 - Section 5/6 - The
Code of Criminal Procedure, 1973 -
Section 161,164,313 - The Juvenile Justice
(Care and Protection of Children) Act,
2015 - Section 15 - The Juvenile Justice
(Care And Protection Of Children) Act,
2007 - Juvenile Justice Rules 2007 - Rule
12 (3) Rule 12 (3) B , Rule 12 (3) (A) (i) to
(iii) - consent of a minor prosecutrix does
not matter if she was taken to separate
places for making sexual intercourse away
from her lawful guardians.(Para - 27)

(B) Criminal Law - sentence - rehabilitary
& reformative aspects in sentencing -
'Proper Sentence' - sentence should not
be either excessively harsh or ridiculously
low - While determining the quantum of
sentence, the court should bear in mind
the 'principle of proportionality' - Gravity
of offence, manner of commission of
crime, age and sex of accused should be
taken into account - Discretion of Court
in
awarding
sentence
cannot
be
exercised arbitrarily or whimsically. (Para
-34,36)

Victim kidnapped - transferred to several
persons - beaten and subjected to physical,
mental and sexual assault - later on was thrown
- found minor by lower court - conviction -
Hence appeal.(Para - 16,26)

HELD:-Proved beyond reasonable doubt that
accused-appellant committed offence under
Section 363 and 366 IPC .Committed offence
under Section 376 IPC read with Section 4 of
the POCSO Act. Not a case of gang rape. Not
guilty of Section 376D and Section 6 of the
POCSO Act. No accused person is incapable of
being reformed, therefore, all measures should
be applied to give them an opportunity of
reformation in order to bring them in the social
stream. (Para -32,36,38)

Jail appeal partly allowed and partly
rejected. (E-7)

List of Cases cited:-

1. Mahadeo Vs St. of Maha. & anr. (2013), 2014
SCC 637

2. Jernail Singh Vs St. of Har. (2013) 7SCC 263

3. Mukesh Vs St. for NCT of Delhi & ors., AIR
2017 SC 2161 (Three-Judge Bench)

4. Ashok Kumar Chaudhary Vs St. of Bihar, 2008
(61) ACC 972 (SC)

5. Rabindra Mahto Vs St. of Jhark., 2006 (54)
ACC 543 (SC)

6. Ravi Kumar Vs St. of Punj., 2005 (2) SCJ 505

7. St. of H.P. Vs Shree Kant Shekari, (2004) 8
SCC 153

8. Munshi Prasad Vs St. of Bihar, 2002(1) JIC
186 (SC)

9. Ravindra Kumar Vs St. of Punj., 2001 (2) JIC
981 (SC)

10. Sheo Ram Vs St. of U.P., (1998) 1 SCC 149

11. St. of Karn. Vs Moin Patel, AIR 1996 SC
3041
8 All. Sonu Vs. State of U.P.
7
12. St. of U.P. Vs Manoj Kumar Pandey, AIR
2009 SC 711 (Three-Judge Bench)

13. Santosh Moolya Vs St. of Karn., (2010), 5
SCC 445"

14. Mohan Das Survanshi Vs St. of M.P., 1999
Cr LJ 3451 (MP)

15. Manoj Mishra @ Chhotkau Vs St. of U.P.,
2021

16. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926

17. Deo Narain Mandal Vs St. of UP, (2004) 7
SCC 257

18. Ravada Sasikala Vs St. of A.P. AIR 2017 SC
1166

19. Jameel Vs St. of U.P. (2010) 12 SCC 532

20. Guru Basavraj Vs St. of Karn., (2012) 8 SCC
734

21. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

22. St. of Punj. Vs Bawa Singh, (2015) 3 SCC
441

23. Raj Bala Vs St. of Har., (2016) 1 SCC 463

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. The appeal has been preferred
against the conviction and sentence of the
appellant Sonu S/o Late Phool Chand,
under Section 363, 366, 376D I.P.C. &
Section 5/6 of POCSO Act in Session Trial
No. 8/2018 in Case Crime No. 111/2017,
P.S. Kotwali, District Vindhyachal, U.P. By
Special Judge POCSO Act / Additional
Sessions Judge, Mirzapur on 14.10.2020.

2. The grounds of appeal are that
there was no evidence on record to prove
the alleged incident. No one had seen Sonu
along with the victim on the date and time
of incident. Though, it is stated that the
victim was kidnapped at about 10:00 A.M
from the nearby market place, no eyewitness saw the occurrence in day light
makes the allegation improbable. No
witness, neither father nor mother of the
victim were aware about the date-of-birth
of the victim as to whether at the time of
occurrence she was minor or not. There
was dispute between the father of the
victim and the uncle of the appellant. The
victim had relations with Dinesh and Sonu.
Sonu has helped the victim to get married
with
Dinesh.
Sonu
has
been
made
scapegoat in the matter. There are glaring
contradiction between the statement and
cross-examination of the witnesses P.W.-1,
P.W.-2 & P.W.-3. The Trial Judge has not
relied upon the medical age already
framing mind to convict the appellant. In
cross-examination, witness has stated that
Sonu had done nothing and had not gone
with the victim though at some places,
victim has deposed against the appellant.
There is no explanation of delay in lodging
the F.I.R. after three months from the
incident. The victim has stated to the I.O.
that she was living in Bahraich with her
husband Dinesh. There is no independent
eye-witness. P.W.-1 and P.W.-2 have given
heresay evidence. The charge is not proved
from the evidence of sole witness, victim
P.W.-3. Appellant has no previous criminal
antecedent, therefore, the appeal be allowed
and the conviction and sentence awarded
by the learned Trial Court be quashed.

3. In brief, the case of the prosecution
is this that informant/plaintiff PW1- Ram
Ashrey father of the victim, moved an
application for lodging the F.I.R. with the
averment that on 27.10.2016, daughter of
the informant P.W.- 1 aged about 17 years
old left the house at about 10 A.M. for
8 INDIAN LAW REPORTS ALLAHABAD SERIES
school, appellant-Sonu with two unknown
youngsters kidnapped and abducted her
daughter. Even after prolong search, he
could not find her daughter. He used to talk
with his daughter from an unknown mobile
no. 9565005779 provided by Sonu. Sonu
informed P.W.-1 that on mobile no.
946763015, he will know about his
daughter. Through that given mobile
number, he contacted his daughter who
informed that she was in Jammu &
Kashmir.

4. On the basis of written FIR Ex. Ka-1,
a case was registered under Section 363 IPC
on 12.03.2017, S.I. Bhuval Singh, Virendra
Yadav, Krishna Nand Rai, Jai Lal and lastly,
S.H.O. Ashok Kumar Singh investigated the
matter. The charge-sheet was submitted by
the last I.O.. The victim was found in injured
condition in a field near pitch road in P.S.
Hardi, District Bahraich, U.P., for which
another crime no. 0338/2017, under Section
307 IPC was registered on 05.03.2017. That
case was transferred to District Mirzapur
where investigation was completed against
the appellant Sonu and charge-sheet was
submitted under Sections 363, 366, 376, 307
IPC and 3⁄4 POCSO Act. Investigation about
rest accused persons remain pending.

5. The accused was charged under the
above sections which he denied and sought
trial.
Prosecution
submitted
following
documentary evidences:-

1. Tehrir FIR, Ex. Ka.-1.

2. Statement of victim under
Section 164 Cr.P.C., Ex. Ka.-2

3. Medical Report Ex. Ka.-3.

4. G.D. regarding institution of
case, Ex. Ka.-4.

6. Map of Case Crime No. 338/17,
under Section 307 IPC, P.S. Hardi, District
Bahraich. Ex-K-5 (Map of this Case Crime
No. 3K/10 and chik FIR 3K/2 and also chik
3k/4 and 5 relating Section 307 IPC, P.S.
Hardi, District Bahraich, have not been
exhibited.)

7. Charge-sheet Ex-K-6

8.

Following
witnesses
were
examined to prove the prosecution case.

1.PW1 Ram Ashrey, informant,
father of the victim.

2.PW2 Pankali, mother of the
victim.

3. PW3 Victim herself.

4. PW4 Dr. Anuradha Mishra.

5. PW5 Ram Lallan Bajpai.

6. PW6 Haldhar @ Rakesh
Yadav.

7.PW7 Head Constable Writer,
Umakant Rai.

8. PW8 S.I. Suresh Kumar Singh,
I.O.

9. PW9 S.I. Ashok Kumar Singh,
I.O.

9. After completion of prosecution
evidence, the statement of the accusedappellant was recorded under Section 313
Cr.P.C., wherein he said that due to enmity
between his maternal uncle and the
informant, he has falsely been implicated in
this case. The appellant did not produce any
oral or documentary evidence in his
defence in the lower court. The Lower
Court heard the argument of both the
parties and came to the conclusion that the
victim was aged about 17 years, at the time
of occurrence. In this regard, Lower Court
has referred to section 94 of Juvenile
Justice Act 2015 and also relied on the case
of Mahadeo vs. State of Maharashtra and
another (2013), 2014 SCC 637, in which
principles have been laid down by the
8 All. Sonu Vs. State of U.P.
9
Hon'ble Apex Court about Rule 12 (3) of
Juvenile Justice Rules 2007 and Rule 12 (3)
B and also Rule 12 (3) (A) (i) to (iii), and
the same has been reiterated by the Hon'ble
Supreme Court in the case of Jernail Singh
Vs. State of Haryana (2013) 7SCC 263. In
this regard the Lower Court has also
examined educational certificates of the
victim in which, her date of birth is
mentioned as 20.10.2001. At the time of
occurrence, the victim was studying in
class 10 in Maharaja Pratap Inter College,
Bihasara.

10. Victim's father and mother PW1 and
PW2 and Victim herself as PW3 have
supported the prosecution version. In their
statement given on oath before the Court,
informant
PW1
has
proved
that
aforementioned
mobile
numbers
were
provided by the accused Sonu, by which he
could contact the victim. He also found mobile
number of the accused in the book of victim.
Accused
also
abused
him
and
used
unparliamentary language on asking about the
victim.

11. The Lower Court has accepted the
explanation given by the informant PW1
regarding non lodging of FIR promptly and
accepted the explanation that to prevent
propaganda, he did not lodge the FIR just after
the incident. It is a common practice in the
Indian society that when any offence is
committed against female member of the
family, firstly, family members try to solve the
problem at their own end and upon failure,
they take recourse of law. In this regard,
following citations are relevant in which
Hon'ble Supreme Court and High Courts have
held that if delay is properly explained then
lodging the delayed F.I.R. is not fatal to the
prosecution case. In case of abduction,
kidnapping and rape of female member of the
family, people think over repeated times and
try to solve the problem at their own end
fearing social admonition and when they
became helpless then they lodge the F.I.R.

About delayed FIR and delayed
recording of statement of PWs by I.O. u/s
161 CrPC, Hon'ble Supreme Court has held
that if causes are not attributable to any
effort to concoct a version and the delay is
satisfactorily explained by prosecution, no
consequence shall be attached to mere
delay in lodging FIR and the delay would
not adversely affect the case of the
prosecution. Delay caused in sending the
copy of FIR to Magistrate would also be
immaterial if the prosecution has been able
to prove its case by reliable evidence:
Hon'ble Supreme Court has in catena of
cases held the above discussed law:-

1a. Mukesh Vs. State for NCT
of Delhi & Others, AIR 2017 SC 2161
(Three-Judge Bench)

1. Ashok Kumar Chaudhary
Vs. State of Bihar, 2008 (61) ACC 972
(SC)

2. Rabindra Mahto Vs. State of
Jharkhand, 2006 (54) ACC 543 (SC)

3. Ravi Kumar Vs. State of
Punjab, 2005 (2) SCJ 505

4. State of H.P. Vs. Shree Kant
Shekari, (2004) 8 SCC 153

5. Munshi Prasad Vs. State of
Bihar, 2002(1) JIC 186 (SC)

6. Ravindra Kumar Vs. State of
Punjab, 2001 (2) JIC 981 (SC)

7. Sheo Ram Vs. State of U.P.,
(1998) 1 SCC 149

8. State of Karnataka Vs. Moin
Patel, AIR 1996 SC 3041

Hon'ble Supreme Court has held
that the normal rule is that prosecution has
to explain delay and lack of prejudice does
not apply per se to rape cases, vide.
10 INDIAN LAW REPORTS ALLAHABAD SERIES

(I) State of U.P. Vs. Manoj
Kumar Pandey, AIR 2009 SC 711
(Three-Judge Bench)

(ii) Santosh Moolya Vs. State of
Karnataka, (2010), 5 SCC 445"

12. PW2, mother of the victim has
also deposed that at times accused Sonu
and his friends used to come at her house.
She further deposed that on 27.10.2016
when victim left the house for school,
Sonu had come with two other friends
who, took away her daughter. When PW1
and PW2, father and mother of the
victim, came to know about the victim,
they went to Bahraich and K.G.M.U.
Lucknow, where, police had admitted the
victim.

13. PW3, victim had narrated the
whole story that on 27.10.2016, when she
was going school, Sonu along with
another person met her at Chauraha
(crossing) and on their direction, she sat
on their Motorcycle, where from she was
taken to a mountain at Mirzapur, there
she was raped by the accused-appellant
Sonu. At the same place, she was made
unconscious by Guddu and was taken
away to Bahraich, where she was given to
Dinesh, Guddu returned from there.
Dinesh kept her for two-three months in
his house, where he used to beat her.
Dinesh at several occasions forcefully
raped her and torn her clothes. Sonu
wanted to marry her. According to her,
she was married another person, Lalla
Prasad, aged about 25 years, by Dinesh.

14. As per the evidence of P.W.-5 &
P.W. 6, the Victim was found in naked
and
unconscious
condition
without
clothes in the area of P.S. - Hardi,
District-Bahraich. There was tube for
passing urine on the body of the victim,
her hymen was old torned. She was also
subjected to physical and sexual assault
when she was found in District Bahraich,
there were marks of injuries at her body.
The victim has proved her statement
recorded under Section 164 Cr.P.C.

15. P.W.-5 Ram Lalla Bajpai and
PW6 Haldhar @ Rakesh have deposed
that victim was found in unconscious
state. There were injuries on her body.

16. Thus, it is proved that the victim
was kidnapped from Mirzapur and was
transferred to several persons and was
beaten and subjected to physical, mental
and sexual assault and later on was
thrown in the area of P.S. Hardi District
Bahraich.

17. According to PW6 Haldhar @
Rakesh Yadav there were injuries upon
both the eyes and nose of the victim.
There was swelling on her face. There
was dried blood at her nose face and
cheeks.

18. P.W.-7 Constable Uma Kant Rai
proved chik FIR and G.D. regarding
institution
of
case.
P.W.-7
S.I.
Investigator Suresh Kumar Singh had
started investigation of Case Crime No.
3311/17, under Section 307 IPC, P.S.
Hardi, District Bahraich, which was
transferred
to
P.S.
Mirzapur
after
knowing that main offence had been
committed under the jurisdiction of P.S.
Vindhyachal, Mirzapur.

19. PW-8 Suresh Kumar Singh, S.I was
appointed Investigating Officer of Case Crime
No. 338/17 Section 307 IPC, PS Hardi, DistrictBahraich, collected the articles received from
the spot recording the statements, visited the
spot, recorded the medical report in C.D. Parcha
8 All. Sonu Vs. State of U.P.
11
and transferred the case P.S.- Vindhyachal,
Mirzapur, for further investigation.

20. P.W.-9, S.I. Investigator, Ashok
Kumar Singh had finally investigated the case
and submitted the charge sheet in the aforementioned sections and proved the same. He
has also proved the papers regarding acts done
during the course of investigation.

21. On the basis of oral and documentary
evidences, the Lower Court convicted the
accused appellant under Sections 363, 366,
376D IPC and Section 6 POSCO Act and
discharged the accused appellant under Section
307 IPC. After conviction Lower Trial Court
sentenced the accused-appellant under Section
363 IPC for rigorous Imprisonment of five
years and 10 thousand Rs. fine and in default of
payment of fine three months additional
imprisonment. The Lower Trial Court has also
sentenced the appellant for seven years rigorous
imprisonment and 10 thousand Rs. fine and in
case of non-payment of fine he would undergo
three months additional imprisonment under
Section 366 IPC. The accused has been
sentenced for life imprisonment and Rs. 50
thousand fine under Section 376D IPC
equivalent Section 6 of POCSO Act and in case
of non-payment of fine simple imprisonment of
1 year has been awarded.

22. As already noted that the appellant has
not produced any evidence in his defence and
there is not even an iota of the evidence in
support of his false implication at the behest of
plaintiff due to enmity with his maternal uncle.
Even alleged enmity is not established.

23. Section 359 defines kidnapping
which is as under:-

Kidnapping is of two kinds;
kidnapping from India and kidnapping
from lawful guardianship.

In this case the matter relates to
kidnapping from the lawful guardianship.

24.

Section
361
relates
to
kidnapping from lawful guardianship-
whoever takes or entices any minor under
sixteen years of age if a male, or under
eighteen years of age if a female, or any
person of unsound mind, without the
consent of such guardian, is said to kidnap
such
minor
or
person
from
lawful
guardianship.

25.

Section
363
relates
to
punishment for kidnapping whoever
kidnaps any person from India or from
lawful guardianship, shall be punished with
imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.

26. In this case, the victim has been
found minor by the Lower Court, which is
not rebutted by the accused-appellant. The
Lower Court has given a categorical
finding by referring to the concerned
Section and Rules of Juvenile Justice Act,
2015. The Trial Court concluded that the
date of birth 20.10.2001 of the victim as
written in the progress report of year 20152016 in Jayanti Singh Lal Man Singh
Ucchatar Madhyamik Vidhyalya, Jignapur
is correct. The occurrence has taken place
on 27.10.2016, thus, the victim was aged
about 15 years 7 days old at the time of
occurrence, which is below 16 years. The
victim's mother PW2 has deposed that her
daughter was about 17 years old at the time
of occurrence. Thus, at the time of
occurrence. Thus victim was a minor and
was under the lawful guardianship of her
parents where from she was kidnapped for
which the accused-appellant has been
rightly punished on the basis of evidence of
P.W.-1, P.W.-2 and P.W.-3. The accused-
12 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant has also been punished and
sentenced under Section 363/366 IPC for
kidnapping, abduction, inducing a woman
to compel her from marriage, it is as
under:-

Section
366
relates
to
kidnapping,
abducting
or
inducing
woman to compel her marriage, etc.-

Whoever kidnaps or abducts any
woman with intent that she may be
compelled, or knowing it to be likely that
she will be compelled, to marry any person
against her will, or in order tat she may be
forced or seduced to illicit intercourse, or
knowing it to be likely that she will be
forced or seduced to illicit intercourse, shall
be punished with imprisonment of either
description for a term which may extend to
ten years, and shall also be liable to fine;
and whoever, by means of criminal
intimidation as defined in this Code or
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid.

Section 375 relates to rape:-

A man is said to commit "rape" if
he-

(a) penetrates his penis, to any
extent, into the vagina, mouth, urethra or anus
of a woman or makes her to do so with him
or any other person; or

(b) inserts, to any extent, any object
or a part of the body, not being the penis, into
the vagina, the urethra or anus of a woman or
makes her to do so with him or any other
persons; or

(c) manipulates any part of the
body of a woman so as to cause penetration
into the vagina, urethra, anus or any part of
body of such woman or makes her to do so
with him or any other persons; or

(d) applies his mouth to the vagina,
anus, urethra of a woman or makes her to do
so with him or any other person.

Under the circumstances falling
under
any
of
the
following
seven
descriptions:

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when
her consent has been obtained by putting her
or any person in whom she is interested, in
fear of death or of hurt.

Fourthly.- With her consent, when
the man knows that he is not her husband and
that her consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married.

Fifthly. - With her consent when, at
the time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or thorough
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which she
gives consent.

Sixthly. - With or without her
consent, when she is under eighteen years of
age.

Sevently. - When she is unable to
communicate consent.

Explanation 1.- For the purposes of
this section, "vagina" shall also be include
labia majora.

Explanation 2.- Consent means an
unequivocal voluntary agreement when the
woman by words, gestures or any form of
verbal
or
non-verbal
communication,
communicates willingness to participate in
the specific sexual act:

Provided that a woman who does
not physically resist to the act of
penetration shall not by the reason only to
8 All. Sonu Vs. State of U.P.
13
that fact, be regarded as consenting to the
sexual activity.

Exception
1.-
A
medical
procedure
or
intervention
shall
not
constitute rape.

Exception 2. - Sexual intercourse
or sexual acts by a man with his own wife,
the wife not being under fifteen years of
age, is not rape.]

Section
376
relates
to
Punishment for rape:-

(1) Whoever, except in the cases
provided for in sub-section (2), commits
rape, shall be punished with rigorous
imprisonment of either description for a
term which1[shall not be less than ten
years,
but
which
may
extend
to
imprisonment for life, and shall also be
liable to fine].

(2) Whoever,--

(a)
being
a
police
officer,
commits rape--

(i) within the limits of the police
station to which such police officer is
appointed; or

(ii) in the premises of any station
house; or

(iii) on a woman in such police
officer's custody or in the custody of a police
officer subordinate to such police officer; or

(b) being a public servant, commits
rape on a woman in such public servant's
custody or in the custody of a public servant
subordinate to such public servant; or

(c) being a member of the armed
forces deployed in an area by the Central or a
State Government commits rape in such area;
or

(d) being on the management or on
the staff of a jail, remand home or other place
of custody established by or under any law
for the time being in force or of a women's or
children's institution, commits rape on any
inmate of such jail, remand home, place or
institution; or

(e) being on the management or on
the staff of a hospital, commits rape on a
woman in that hospital; or

(f) being a relative, guardian or
teacher of, or a person in a position of trust or
authority towards the woman, commits rape
on such woman; or

(g) commits rape during communal
or sectarian violence; or

(h) commits rape on a woman
knowing her to be pregnant; or

(j) commits rape, on a woman
incapable of giving consent; or

(k) being in a position of control or
dominance over a woman, commits rape on
such woman; or

(l) commits rape on a woman
suffering from mental or physical disability;
or

(m) while committing rape causes
grievous bodily harm or maims or disfigures
or endangers the life of a woman; or

(n) commits rape repeatedly on the
same woman,

shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be liable to
fine.

Explanation.--For the purposes of
this sub-section,--

(a) "armed forces" means the
naval, military and air forces and includes
any
member
of
the
Armed
Forces
constituted under any law for the time
being in force, including the paramilitary
forces and any auxiliary forces that are
under
the
control
of
the
Central
Government or the State Government;

(b) "hospital" means the precincts
of the hospital and includes the precincts of
any institution for the reception and
treatment of persons during convalescence
14 INDIAN LAW REPORTS ALLAHABAD SERIES
or of persons requiring medical attention or
rehabilitation;

(c) "police officer" shall have the
same meaning as assigned to the expression
"police" under the Police Act, 1861 (5 of
1861);

(d)
"women's
or
children's
institution" means an institution, whether
called an orphanage or a home for
neglected women or children or a widow's
home or an institution called by any other
name, which is established and maintained
for the reception and care of women or
children.

1[(3) Whoever, commits rape on
a woman under sixteen years of age shall
be punished with rigorous imprisonment
for a term which shall not be less than
twenty years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that
person's natural life, and shall also be liable
to fine:

Provided that such fine shall be
just and reasonable to meet the medical
expenses and rehabilitation of the victim:

Provided further that any fine
imposed under this sub-section shall be
paid to the victim.]

27. In the case of Mohan Das
Survanshi Vs State of Madhya Pradesh,
1999 Cr LJ 3451 (MP), the Court held that
consent of a minor prosecutrix does not
matter if she was taken to separate places
for making sexual intercourse away from
her lawful guardians, her name different in
FIR does not matter as it was her pet name,
under such circumstances accused is guilty
of kidnapping and raping a minor for days.

28. In this regard P.W.-1 and P.W.-2
have deposed that accused -appellant Sonu
used to come at their house with one or two
persons, and PW3 has deposed that she was
on the way to school, when she was taken
away by Sonu and another unknown
person. On their direction, she sat on their
Motorcycle but they did not leave her at her
school and carried her to Mirzapur
Mountain where, Sonu raped her and
Guddu thereafter had taken her to Bahraich.
Thus, when the victim was on the way to
school even then she was under the lawful
guardianship of her parents being minor
girl. Later on, she has deposed that Guddu
had given her in the custody of Dinesh who
got her married to Lalla Prashad, who
makes bricks in Delhi. The accusedappellant
had
knowledge
about
the
consequences of kidnapping and abduction
of a minor girl. Medical evidence of PW4
also corroborates the oral evidence of P.W.-
1, P.W.-2 and P.W.-3. Doctor PW4 found
the victim's hymen old torned. She opined
that it might be due to injury or due to inter
course. Thus, the Lower Trial Court has
rightly convicted the appellant under
Sections 363 and 366 IPC.

29. From the above discussed
evidences, it is also proved that she was
raped by Sonu and one Dinesh but Dinesh
was not present in Mirzapur when she was
raped on the Mountain at Mirzapur by
Sonu. There is no evidence that Sonu was
also present when Dinesh had raped her. It
is also not established that who was another
person and whether one Guddu named by
the victim was also present when she was
being raped by Sonu at the Mountain of
Mirzapur.
Therefore,
it
is
clearly
established from the evidence of the victim
PW3 that at the time of rape she was alone
raped by the accused-appellant Sonu.
Therefore, Section 376D is not attracted as
it is not established by any evidence that it
is a case of gang rape. Though, it is
established and proved beyond reasonable
doubt that she was raped by two or three
8 All. Sonu Vs. State of U.P.
15
persons at different locations and at
different time. Therefore, this Court is of
the opinion that Section 376D is not made
out and the accused is not liable to be
punished and sentenced under Section
376D IPC and the Lower Court has erred in
coming to the above conclusion. Thus, the
accused-appellant
is
proved
to
have
committed the offence of rape with the
minor prosecutrix of this case.

30. The Lower Trial Court has
convicted
and
sentenced
the
accusedappellant under Section 6 of the POSCO Act.
Section 6 POSCO Act was amended on
16.08.2019 and minimum sentence of 20
years imprisonment was added along with
imposition of fine. Since, it is proved that it is
not a case of gang rape as the victim was
raped by more than one person at different
time intervals and the trial is going on only
for the accused -appellant Sonu, who
kidnapped and abducted the victim from
Mirzapur and committed penetrative sexual
assault on her. Therefore, this case is covered
under Section 4 of the POSCO Act. The
offence was committed on 27.10.2016 and
Section 4 was amended on 16.08.2019 and
minimum sentence 07 years was amended
and enhanced to minimum 10 years. By the
same amendment, section 4 clause (2) of the
POSCO Act was added and it was provided
that if penetrative sexual assault has been
committed upon a child below 16 years of
age, the accused shall be punished with
imprisonment for a term not less than 20
years which may extend to imprisonment for
life. Before the date of occurrence i.e.
16.08.2019, sub-Section 2 of Section 4 was
not part of the statute.

31. So far as Section 376 IPC is
concerned, this Section was amended on
03.02.2013,
earlier
this
Section
was
substituted by Act 43 of 1983 w.e.f.
25.12.1983. On 21.04.2018 the sentence
clause was amended thereby incorporating,
"shall not be less than 10 years but, which
may extend to imprisonment of life and shall
also be liable to fine". Before the aforesaid
date minimum seven years sentence was
provided. Earlier, it has been concluded by
this Court that it is not a case of gang rape by
the accused-appellant but the victim was
subjected to rape by Sonu alone for which
Sonu was tried by the lower trial Court and
this appeal too.

32. In view of the above discussion, it
is proved beyond reasonable doubt that
accused-appellant Sonu has committed the
offence under Section 363 and 366 IPC and
also committed the offence under Section
376 IPC read with Section 4 of the POCSO
Act. In this context the law laid down by
the Hon'ble Supreme Court in Manoj
Mishra @ Chhotkau Vs State of Uttar
Pradesh 2021, is relevant wherein after
rape of a minor girl, the Session Trial under
Sections 363, 366, 376D and 3⁄4 POCSO
Act was conducted and the accused was
convicted and sentenced and duly affirmed
by the High Court, Lucknow Bench, as
follows:-

(I) The Trial Court awarded 3
years RI and Rs. 3,000/- fine for the
offence u/s 363 I.P.C.

(ii) The Trial Court awarded RI
and Rs. 5,000/- fine for the offence u/s 366
I.P.C.

(iii) The Trial Court awarded RI
and Rs. 25,000/- fine for the offence u/s
376 I.P.C.

(iv) The Trial Court awarded RI
and Rs. 2,000/- fine for the offence u/s 506
I.P.C.

(v) The Trial Court awarded RI
and Rs. 7,000/- fine for the offence u/s 4
POCSO Act.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

The Supreme Court found that it
was not a case of gang rape, therefore,
confirmed the conviction and sentence
awarded by the trial Court and confirmed
by the High Court under Section 363 & 366
I.P.C. but converted the Section 376 D into
Section 376 I.P.C and held that prior to the
amendment w.e.f. 21.04.2018 the minimum
sentence was 07 years which became 10
years minimum w.e.f. 21.04.2018 and since
the accused has undergone sentence for
more than 8 years, the appellant shall be
released on payment of fine.

33. The Supreme Court held that
appellant was father of five children and
there was not apprehension that appellant
would indulge in similar acts in future. He
had no criminal antecedent. Section 376D
was not made out therefore, the Hon'ble
Supreme Court released the appellant for
undergone sentence for more than 8 years
and ordered to release him after payment of
fine. The facts of the above cited case is
similar to the case in hand.

34. In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by
reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

34. The term, 'Proper Sentence', was
explained in Deo Narain Mandal Vs.
State of UP, (2004) 7 SCC 257 by
observing that sentence should not be either
excessively harsh or ridiculously low.
While
determining
the
quantum
of
sentence, the court should bear in mind the
'principle of proportionality'. Sentence
should be based on facts of a given case.
Gravity of offence, manner of commission
of crime, age and sex of accused should be
taken into account. Discretion of Court in
awarding sentence cannot be exercised
arbitrarily or whimsically.

35. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, Supreme Court
referred its earlier judgments rendered in
Jameel vs State of UP [(2010) 12 SCC
532],
Guru
Basavraj
vs
State
of
Karnatak, [(2012) 8 SCC 734], Sumer
Singh vs Surajbhan Singh, [(2014) 7 SCC
323], State of Punjab vs Bawa Singh,
[(2015) 3 SCC 441], and Raj Bala vs
State of Haryana, [(2016) 1 SCC 463],
and has reiterated that, in operating the
sentencing system, law should adopt
corrective machinery or deterrence based
on
factual
matrix.
Facts
and
given
circumstances in each case, nature of
crime, manner in which it was planned and
committed, motive for commission of
8 All. Sonu Vs. State of U.P.
17
crime, conduct of accused, nature of
weapons used and all other attending
circumstances are relevant facts which
would enter into area of consideration.
Further, undue sympathy in sentencing
would
do
more
harm
to
justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
Supreme Court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

36. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country
which
is
reformative
and
corrective and not retributive, this Court
considers that no accused person is
incapable of being reformed, therefore, all
measures should be applied to give them
an opportunity of reformation in order to
bring them in the social stream.

37. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine
of proportionality'. It appears from perusal
of impugned judgment that sentence
awarded by learned trial court for life term
is very harsh keeping in view the entirety
of facts and circumstances of the case and
gravity of offence. Hon'ble Supreme
Court, as discussed above, has held that
undue harshness should be avoided taking
into account the reformative approach
underlying in criminal justice system.

38. In this case, the accusedappellant has no criminal antecedent. It is
not a case of gang rape. He belongs to a
poor family. He is about 24 years old,
therefore,
a
lenient
view
regarding
sentence may be adopted. Consideration
may be given to the young age, future &
financial condition of the accused. The
appellant is not even financially able to
arrange a private Advocate due to which,
an amicus curiae has been provided to
him.
Considering
the
overall
circumstances, this Court is of the opinion
the
punishment
and
sentence
under
Section 363 & 366 IPC is liable to be
maintained and that the accused has not
been found guilty of Section 376D and
Section 6 of the POCSO Act instead he
has been found guilty of Section 376 IPC
and Section 4 POCSO Act. Therefore,
adopting a reformative approach, the
accused is liable to be punished for seven
years rigorous imprisonment and Rs.
25,000/- fine under Section 376 I.P.C and
Section 4 POCSO Act.
18 INDIAN LAW REPORTS ALLAHABAD SERIES
Order in Appeal.

1. The appeal is accordingly partly
allowed
and
partly
rejected.
The
punishment and sentence awarded by the
Lower Court under Section 363, 366 IPC is
maintained.

2. The conviction under Section 376D
IPC and Section 6 POCSO Act is modified
under Section 376 IPC and Section 4 of the
POCSO Act and is awarded seven years
rigorous imprisonment and fine of Rs.
50,000/-. In case of non-payment of fine
under Section 376 and Section 4 of the
POCSO Act, the accused-appellant shall
undergo one year additional rigorous
imprisonment. The fine imposed as above
shall be given to the victim as amount of
compensation. As the accused-appellant is
already
in
jail
the
period
of
his
incarceration in jail shall be adjusted as per
rules.
All
the
sentences
shall
run
concurrently.

3. The Registry to return the lower
court record along with the copy of this
order.
----------
(2022) 8 ILRA 18
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 1197 of 1984

Kehari & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri K.S. Chauhan, Sri Kunwar Bhadur Dixit,
Sri Anurag Shukla
Counsel for the Respondent:
A.G.A.